Dover in Review: An Analysis of Judge Jones' Flawed Ruling in Kitzmiller v. Dover Area School District

During the Christmas break, I posted a four-part series analyzing various issues surrounding the Dover intelligent design ruling. In case you missed it, I am reposting the first three parts of the series here in one place. The analysis addresses the following questions:

I. Is Judge Jones an activist judge?

II. Did Judge Jones read the evidence submitted to him in the Dover trial?

III. Did Judge Jones accurately describe the content and early versions of the ID textbook Of Pandas and People?

I would like to start my analysis of the Dover decision by revisiting the question of whether Judge Jones is an "activist" judge. Some Darwinists are livid that I've applied this label to the Judge. Although I've explained my reasons for regarding Jones as an activist in detail to many reporters, my full views haven't really been reported. So I thought I would explain them here.

I regard Judge Jones as a judicial activist not because I disagree with the outcome of his decision (although I do), but because I disagree with the injudicious and overreaching manner in which he framed his decision.

It is a standard principle in good constitutional jurisprudence that a judge should only go as far as necessary to answer the issue before him. So if a judge can decide a case on narrow grounds, that's what he ought to do. He shouldn't try to to use his opinion to answer all possible questions. In the present case, Judge Jones found that the Dover board did not act for a legitimate secular purpose. Instead, he determined that board members acted for clearly religious reasons. Having made this determination, the specific policy adopted by the Dover board was plainly unconstitutional under existing Supreme Court precedents. End of story. There was no need for the Judge to launch an expansive discussion of whether intelligent design is science, whether there is scientific evidence for the concept, whether it is inherently religious, whether Darwinism has flaws, or whether Darwinian evolution is compatible with faith. A judge who actually adheres to the idea of judicial restraint would not have ventured into these other areas, because they were completely unnecessary for the disposition of the case.

Why, then, did Judge Jones venture so far afield from what was necessary to determine the case? From the comments he made to the newsmedia, it seems that he wanted his place in judicial history. He relished the idea that he could be the first judge to give a definitive pronouncement on ID, and he didn't want to let go of that oppportunity just because good judicial craftsmanship wouldn't allow it. Judge Jones also had no small estimate of his own importance in the scheme of things. Take the following remarkable passage from his opinion:

the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. [p. 63] (emphasis added)

This passage exhibits the height of presumption, and it's why in my initial statement after the trial I referred to Judge Jones as having "delusions of grandeur." First, and contrary to the Judge's claim, a determination of whether ID is science was plainly NOT essential to the disposition of the case, as pointed out above. Even more troubling, however, is the Judge's suggestion that he wanted to determine whether ID is science so that no other judge need investigate the facts for himself. Judge Jones is a federal district court judge in one particular district court in Pennsylvania. But he's speaking as if he is more powerful than a majority on the United States Supreme Court! He is staking out the claim to have the right and duty to decide the question of whether inteligent design is science for all other judges in the entire United States in the future. Lower federal court judges are bound by Supreme Court precedents, but they certainly aren't bound by the rulings of other lower court judges at the same level. Although other federal judges certainly can refer to Judge Jones' decision (especially to his legal reasoning), every judge has a duty to reach an impartial and independent determination of the facts and law in the cases before him. Another federal district court judge can't simply say, "Well, Judge Jones has already decided the matter, so there is no need for me to do anything in this case before me." Nor can the judge tell the parties to a new case: "I've decided not to allow you to present any evidence, because Judge Jones already heard the evidence three years ago." Judge Jones, no matter what he thinks, is not the entire federal judiciary. Nor does he have the right to speak for the entire federal judiciary.

Another thing: Judges who truly believe in judicial restraint are careful not to try to use judicial power to decide divisive cultural controversies unless it is legally necessary to do so. In this case, as pointed out previously, Judge Jones had narrow grounds on which to base his decision. But he chose not to do so because he wanted to issue a definitive ruling on the disputed questions of whether intelligent design is science and whether it could ever be taught constitutionally in science classes. He wanted to decide the larger public controversy for all future legislators, school boards, and judges. That is judicial activism with a vengeance. It's the same type of activism that led the federal courts to try to decide the issue of slavery before the Civil War by judicial fiat in the case of Dred Scott. And it's the same type of judicial activism that led the federal courts to inject themselves into a host of social conflicts (such as abortion) during the past few decades. Far from resolving controversial issues, such activism betrays the democratic process and often leads to further polarization. By giving everyone a stake in the discussion, the democratic process tends to promote incremental solutions and compromise, which cools tensions over the long term. That's why judges who believe in judicial restraint are careful not to intervene on one side of a controversial debate unless absolutely necessary. It is the hallmark of activism for a judge to try to impose his view on a controversy when such a course of action is not absolutely necessary as a matter of law.

The main responses I've heard to the charge that Judge Jones is an activist are these: (1) he insists he's not an activist; and (2) he's a lifelong Republican.

Well, of course Judge Jones says he's not an activist. But methinks he protests too much. In his decision he goes out of his way to announce that his opinion will surely be attacked as an activist one. Far from indicating that he isn't an activist, I think that this self-serving disclaimer indicated that he plainly knew he was being an activist and wanted to cover himself.

Regarding the fact that he is a Republican appointed by a Republican President: So what? The most liberal activist member of the current United States Supreme Court (John Paul Stevens) was appointed not by Bill Clinton but by Republican President Gerald Ford. President Ronald Reagan, meanwhile, appointed a number of judges (at all levels) who turned out to be just as liberal as any Democratic appointees. Only someone with scant knowledge of judicial appointments over the past few decades would claim that the fact that a Republican president appointed a judge would mean that the judge could not be a judicial liberal or an activist.

Of course, the newsmedia are now fast spinning the tale that Judge Jones is not only a Republican, but he's supposed to be a conservative and devoutly religious Republican. As I have blogged about here, those claims seem to be as mythical as the view that Judge Jones isn't an activist.

II. Did Judge Jones read the evidence submitted to him in the Dover trial?

It has become apparent that Judge Jones was incredibly sloppy with the purported findings of "fact" in his lengthy 139-page judicial opinion. Time and again, Jones made assertions in his opinion that were unambiguously factually wrong--even though the correct information was a part of the official record before him. It is beginning to look like he didn't even bother to read or consider the information and arguments submitted by the side he disagreed with.

Judge Jones writes that "a final indicator of how ID has failed is the complete absence of peer-reviewed publications supporting the theory." (p. 87, emphasis added) Again, he claims that "ID is not supported by any peer-reviewed research, data or publications." (p. 87, emphasis added) In a footnote, he glancingly mentions one peer-reviewed article in the journal Protein Science by Michael Behe, but complains that this article does not explicitly reference ID. (footnote 17, p. 88).

Drawing on theologian John Haught, Judge Jones treats Thomas Aquinas as the originator of the ID of intelligent design, writing that "ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He [Haught] traced this argument back to at least Thomas Aquinas in the 13th century...." (p. 24) In fact, discussions about the design of nature date back to Plato and Aristotle and significantly predate medieval theology. Judge Jones would have known this fact had he read the Foundation for Thought and Ethics amicus brief, which pointed out (with documentation):

Ancient philosophers began formulating arguments about design long before they had exposure to the Bible, and indeed without basing their arguments on sacred scriptures of any kind.The Greek philosophers Heraclitus, Empedocles, Democritus, and Anaximander believed that life could originate without any intelligent guidance, while Socrates, Plato, and Aristotle advocated that mind was required.33 During the Roman era, Cicero cited the orderly operation of the stars as well as biological adaptations in animals as empirical evidence that nature was the product of "rational design." [pp. 12-13]

Judge Jones either didn't read the brief, which is part of the official record of the case, or he again ignored the evidence simply because it didn't fit his predetermined conclusions.

Contrary to Judge Jones, there was extensive evidence in the trial record and documents submitted in briefs that intelligent design does NOT "require supernatural creation." Indeed, Judge Jones seems to willfully misrepresent the claims of intelligent design scientists, who consistently have made clear from the very start that empirical evidence cannot tell one whether the intelligent causes detected through modern science are inside or outside of nature. For extensive documentation of this fact, see Appendix A to the Discovery Institute amicus brief submitted in the case, available here.

As a scientific theory, all ID claims is that there is empirical evidence that key features of the universe and living things are the products of an intelligent cause. Whether the intelligent cause involved is inside or outside of nature cannot be decided by empirical evidence alone. That larger question involves philosophy and metaphysics.

To justify his false claim that ID requires a supernatural cause, Judge Jones also completely misrepresents the content of the textbook Of Pandas and People. He claims at one point that "Pandas indicates that there are two kinds of causes, natural and intelligent, which demonstrate that intelligent causes are beyond nature." (p. 30) In fact, Pandas explicitly and repeatedly makes the opposite claim: Intelligent causes may be either inside or outside of nature, and empirical evidence alone can't determine which option is correct.Pandas made this distinction even in its early drafts, one of which emphatically stated that "in science, the proper contrary to natural cause is not supernatural cause, but intelligent cause." (FTE Amicus Brief, Appendix B, Document B; emphasis added.) Also consider the following passages from the edition of Pandas actually used in Dover (both of these passages were highlighted for Judge Jones in Appendix A of the FTE amicus brief):

"If science is based upon experience, then science tells us the message encoded in DNA must have originated from an intelligent cause. But what kind of intelligent agent was it? On its own, science cannot answer this question; it must leave it to religion and philosophy. But that should not prevent science from acknowledging evidences for an intelligent cause origin wherever they may exist."(Of Pandas and People, 2nd ed., 1993, pg. 7; emphasis added)

"Today we recognize that appeals to intelligent design may be considered in science, as illustrated by current NASA search for extraterrestrial intelligence (SETI). Archaeology has pioneered the development of methods for distinguishing the effects of natural and intelligent causes. We should recognize, however, that if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science." (Of Pandas and People, 2nd ed., 1993, pg. 126-127; emphasis added)

Again, the intelligent causes detected through empirical evidence may be either inside or outside of nature; and contrary to Judge Jones, this point is made in the very book he cites to justify his position. Incredibly, Judge Jones at another point in his opinion (p. 25) misinterprets the Pandas' quote on p. 7 as further proof that ID requires a belief in a supernatural cause, claiming:

In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas' rhetorical statement, "what kind of intelligent agent was it [the designer]" and answer: "On its own science cannot answer this
question. It must leave it to religion and philosophy."

Contrary to Judge Jones, the above statement clearly does NOT concede that "the intelligent designer works outside the laws of nature and science." Instead, it merely reaffirms that empirical science cannot determine whether the intelligent cause detected resides inside or outside of nature. That further determination requires more than empirical science. Far from being merely "rhetorical," this claim is central to the definition of intelligent design as a scientific theory, and it is reaffirmed and further explained in other passages in Pandas that the Judge ignores (such as the passage on pp. 126-127 cited above).

According to Judge Jones, intelligent design is not just "religious," it is the outgrowth of twentieth-century American Christian "fundamentalism." He makes this claim notwithstanding the fact that the debate over design in nature reaches back to the ancient Greeks (as pointed out above), and that the debate remained an important dispute among scientists from Darwin onward. As explained in the FTE amicus brief:

Design was also an important part of the contemporary scientific debate at the time Darwin's theory was developed. Indeed, the term "intelligent design" as an alternative to blind evolution was employed by Oxford scholar F.C.S. Schiller as early as 1897. Schiller wrote that "it will not be possible to rule out the supposition that the process of Evolution may be guided by an intelligent design." Schiller, like modern design theorist Michael Behe, argued for intelligent design without rejecting all forms of evolution or even common descent.

It's important to stress that Judge Jones can't point to even a single doctrine unique to Christian fundamentalism that is incorporated by ID. Indeed, he effectively concedes that ID proponents distinguish their theory from fundamentalism by pointing out that it does NOT involve arguments based on "the Book of Genesis", "a young earth," or "a catastrophic Noaich flood." (p. 35) So where's the fundamentalism?

In wrongly trying to conflate ID with fundamentalism, Judge Jones simply ignored the testimony in his court of two of the most prominent ID scientists, biologists Michael Behe and Scott Minnich. Neither Minnich nor Behe were shown by the ACLU to be fundamentalists (they aren't), neither were shown to believe in a literal reading of Genesis (they don't), neither were shown to come to their beliefs in ID from fundamentalism (they didn't), and both reject neo-Darwinism on scientific grounds. Indeed, Behe has made clear that he had no problem with the modern theory of evolution until he discovered that what he was seeing in the lab did not fit with what he was being told in standard textbook accounts. Behe's skepticism of neo-Darwinism was not driven by a change in religion, but by scientific evidence. So again, where's the fundamentalism?

To conclude, Judge Jones' repeated mistatements of fact and his one-sided recitation of the "evidence" reveal not only a judicial activist, but an incredibly sloppy judge who selects the facts to fit the result he wants.

III. Did Judge Jones accurately describe the content and early versions of the ID textbook Of Pandas and People?

In his decision, Judge Jones placed great weight on the early intelligent design textbook Of Pandas and People published by the Foundation for Thought and Ethics (FTE). According to Judge Jones, early drafts of this textbook supposedly show that intelligent design is merely repackaged creationism. However, Judge Jones seriously misrepresented the facts about Of Pandas and People, and he also misapplied the relevant legal standards.

Earlier this year when it became evident that the ACLU was trying to put Pandas on trial just as much as the Dover School Board, the Foundation for Thought and Ethics sought to intervene in the case so that it could defend itself. FTE wanted to cross-examine the ACLU's witnesses as well as present its own experts, evidence, and arguments during the trial. Yet Judge Jones rejected FTE's motion for intervention. FTE was eventually allowed to submit a "friend of the court" brief to Judge Jones, but such briefs do not have the same status as evidence and arguments presented at trial, and the brief was limited to no more than 5,000 words (including footnotes). That's right, Judge Jones allowed FTE a mere 5,000 words to rebut literally hundreds of pages of testimony and allegations made by the ACLU. How is that for fair and impartial justice? Given Judge Jones' explicit refusal to allow FTE to present a defense in the Dover case, his condemnation of FTE's textbook was grotesque.

Regarding the substance of Judge Jones' critique of Pandas, one would do well to read the amicus brief filed by FTE in the case. The FTE brief clearly demonstrates (1) that the published versions of Pandas do not promote creationism; (2) that the early drafts of Pandas did not promote "creationism" as it has been defined by the Supreme Court; and (3) that even if early drafts of Pandas did promote creationism in the eyes of Judge Jones, those drafts should be legally irrelevant. FTE's full brief (including footnotes and appendices with supporting documentation) can be downloaded here and here.

AMICUS BRIEF FILED BY THE FOUNDATION FOR THOUGHT AND ETHICS (excerpts)

I. INTELLIGENT DESIGN, AS DESCRIBED IN PANDAS, DIFFERS FROM CREATIONISM IN BOTH METHODOLOGY AND
PROPOSITIONAL CONTENT.

A. Intelligent Design, As Described In Pandas, Bases Its Claims On Empirical Evidence And Scientific Methods Rather Than Upon Faith, Doctrine, Or Scripture.

Creationism is identified by its reliance upon religious scripture and doctrine, rather than empirical evidence. By contrast, the theory of intelligent design, as developed in Pandas, relies upon scientific data and does not address religious or doctrinal questions. Pandas infers design using observations, uniform experience, and empirical experimental evidence: "If experience has shown that a certain class of phenomena results from intelligent causes and then we encounter something new but similar, we conclude its origin also to be from an intelligent cause." Pandas consistently takes this empirical approach and nowhere relies upon faith, doctrine, or religious scripture.

B. Intelligent Design, As Described In Pandas, Is Distinct From Creationism Because It Does Not Use Science To Postulate A "Supernatural Creator," Nor Does It Attempt To Validate The Biblical Account In Genesis.

Plaintiffs contend that teaching intelligent design endorses religion. The endorsement test, as adopted by the Supreme Court, employs an objective component where a statement cannot be taken in isolation but must be read in its entire context: "The meaning of a statement to its audience depends both on the intention of the speaker and on the "objective" meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker." Plaintiffs ignore the context in Pandas explaining how intelligent design cannot identify the designer as well as Pandas' emphasis on empirical data.

In Edwards, the Supreme Court held that creation science entailed the "religious viewpoint" that "a supernatural creator was responsible for the creation of humankind." Plaintiffs try to force the square peg of design into the round hole carved by Edwards, falsely asserting that Pandas postulates a "supernatural entity." Yet Pandas clearly states that the scientific theory of intelligent design cannot address questions about the ultimate nature of the intelligent cause: "But what kind of intelligent agent was it? On its own, science cannot answer this question; it must leave it to religion and philosophy." "We should recognize, however, that if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science." Because it does not delve into questions surrounding the supernatural, Pandas does not violate methodological naturalism (as espoused by plaintiffs).

Moreover, the Pandas edition used in Dover explicitly disclaims endorsement of Christianity: "Advocates of design have included not only Christians and other religious theists, but pantheists, Greek and Enlightenment philosophers and now include many modern scientists who describe themselves as religiously agnostic. Moreover, the concept of design implies absolutely nothing about beliefs normally associated with Christian fundamentalism, such as a young earth, a global flood, or even the existence of the Christian God." This context makes it clear that Pandas does not endorse any particular religious belief, including Christianity. All design implies is "life had an intelligent source."

In an attempt to attack the scientific basis of the theory of intelligent design, plaintiffs claim that the only alternative to explanation by natural causes is an appeal to supernatural causes. Pandas offers two distinct categories of scientific explanation: natural and intelligent. Pandas carefully distinguishes between "supernatural" causes and "intelligent" causes, for intelligent causes are amenable to scientific investigation, whereas it is impossible to detect whether a cause is "supernatural." The distinction between intelligent and supernatural causes is a critical one, and it was adopted by FTE before the decision in Edwards, as reflected in early drafts of Pandas. If plaintiffs were correct, Pandas should not explain design using examples of intelligent, yet non-supernatural causes. But Pandas offers many such examples, including human writers, artists, skywriters, car manufacturers, carpenters, tribespeople, and engineers. In short, the intelligent aspect of a cause is detectable, while supernatural identity is not: if an intelligent cause is indeed supernatural, its identity as such cannot be determined via science. Pandas explains that we have everyday experience with detecting intelligence; thus, intelligent design is not an untestable supernatural concept.

3. Statements About A "Master Intellect" Do Not Endorse Religion.

Plaintiffs argue that appealing to a "master intellect" entails a deity. Yet the appropriate dictionary definition of "master" has no religious overtones: "being a master of some occupation, art, etc.; eminently skilled a master diplomat; a master pianist." Pandas refers to the "master intellect" in terms of the designer's ability to design sophisticated biological molecules. An early draft of Pandas observes: "Some master intellect is the creator of life. But such observable instances of information cannot tell us if the intellect behind them is natural or supernatural. This is not a question that science can answer."

The claim that the complex information in biological organisms is best explained by an intelligent source is no more "ultimate" in its reach than the claim of Neo-Darwinism that all life results from random mutation and natural selection. What matters is not the degree of "ultimacy" but whether the claim is one that science can address. "Thus the so-called 'Big Bang' theory, an astronomical interpretation of the creation of the universe, may be said to answer an 'ultimate' question, but it is not, by itself, a 'religious' idea." Similarly, intelligent design interprets biological data as sharing the same informational content found in human language and machines. Like Big Bang cosmology or Neo-Darwinism, the theory of intelligent design in biology is not religious because it lacks "comprehensiveness" and is "generally confined to one question."